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Case Name
KKO:2011:260
INCADAT reference
HC/E/FI 1091
Court
FINLAND
Korkein oikeus
Appellate Court
States involved
CANADA
FINLAND
Decision
12 April 2011
Final
Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b)
Appeal dismissed, return ordered
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-
INCADAT comment
Aims & Scope of the Convention
SUMMARY
Facts
The mother had gone to Finland for the birth and returned with the child in late 2008. Prior to return on 26 November 2008, the parents made an agreement, confirmed by a lawyer of the Helsinki Social Services Department, that the child would reside with the mother. No mention was made of custody or access in the agreement.
On 16 February 2010 the mother took the child to Finland. They were due to return at the end of March, but this was deferred, first because of the mother being ill, then due to the Icelandic ash cloud. Thereafter the mother did not return and the father issued Hague Convention proceedings.
The Helsinki Court of Appeal sitting as the designated court of first instance ruled that the child was habitually resident in Canada at the time she was retained and ordered her return to Canada. The mother appealed before the Supreme Court, sitting as a court of appeal for Hague Convention proceedings.
Ruling
Grounds
Habitual Residence - Art. 3
Additional details were presented in the judgment of the Supreme Court. The Court acknowledged that in the notes made by the lawyer of the Helsinki Social Services Dept it was recorded the mother indeed wanted to come to live in Finland, however, the father had wanted to return to Canada "for some time".
The Court held that the notes and subsequent email exchanges between the parents in which the father did not deny the existence of a shared intention, supported the view that the mother had understood her return to Canada at the end of 2008 as being temporary and that the family would then move to live permanently in Finland.
The Court noted that the father had raised certain changes in circumstances as well as reasons related to his work and the family's financial situation that were in favour of the family's residence in Canada. The Court held that since the exact time for moving to Finland was unfixed and the mutual understanding of the parents remained unclear, there were insufficient contractual grounds for turning down the return petition.
The Court noted that the parents had lived in Canada for a long time and had a flat there. The November 2008 agreement pointed to the mother's intention as regards a return to Finland, but that did not suffice to show that agreement would have been reached between the parents as to a relocation at a specific time. The Court noted that the mother had booked return tickets for her 2010 trip to Finland. In the light of the available information it concluded that the child's place of habitual residence was in Canada.
Grave Risk - Art. 13(1)(b)
The Court rejected an argument based on Art 13(1)(b) as groundless.
Author of summary: Peter McEleavy
INCADAT comment
The ruling of the Court of Appeal is found at: Helsinki Court of Appeal, 22 March 2011, Decision No 879 [INCADAT Reference: HC/E/FI 1090]. The Court's interpretation of habitual residence builds on that found in the previous ruling of the Supreme Court, KKO:2008:98 [INCADAT Reference: HC/E/FI 1089].
Habitual Residence
The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.
Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.
General Trends:
United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.
Child Centred Focus
The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:
Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].
See also:
Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].
Combined Child's Connection / Parental Intention Focus
The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.
The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].
See also:
Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].
In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.
Parental Intention Focus
The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.
This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:
Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;
Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;
Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.
The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:
Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];
Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].
It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.
Other Jurisdictions
There are variations of approach in other jurisdictions:
Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).
8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].
Canada
In the Province of Quebec, a child centred focus is adopted:
In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.
Germany
A child centred, factual approach is also evident in German case law:
2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].
This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:
Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998 [INCADAT Reference: HC/E/DE 233].
The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.
Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:
Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];
Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].
However, reference has been made to a more child centred approach in other cases. See:
decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;
FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].
New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See
S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].
Switzerland
A child centred, factual approach is evident in Swiss case law:
5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].
United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:
R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;
R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.
Open-Ended Moves
Where a move is open ended, or potentially open ended, the habitual residence at the time of the move may also be lost and a new one acquired relatively quickly, see:
United Kingdom - England and Wales (Non-Convention case)
Al Habtoor v. Fotheringham [2001] EWCA Civ 186, [INCADAT cite: HC/E/UKe 875];
New Zealand
Callaghan v. Thomas [2001] NZFLR 1105 [INCADAT cite: HC/E/NZ 413];
United Kingdom - Scotland
Cameron v. Cameron 1996 SC 17, 1996 SLT 306, 1996 SCLR 25 [INCADAT cite: HC/E/UKs 71];
Moran v. Moran 1997 SLT 541 [INCADAT cite: HC/E/UKs 74];
United States of America
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].
Relocations
Where there is clear evidence of an intention to commence a new life in another State then the existing habitual residence will be lost and a new one acquired.
In common law jurisdictions it is accepted that acquisition may be able to occur within a short period of time, see:
Canada
DeHaan v. Gracia [2004] AJ No.94 (QL), [2004] ABQD 4, [INCADAT cite: HC/E/CA 576];
United Kingdom - England & Wales
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT cite: HC/E/UKe 2];
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548, [INCADAT cite: HC/E/UKe 40].
In civil law jurisdictions it has been held that a new habitual residence may be acquired immediately, see:
Switzerland
Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P.367/2005 /ast, [INCADAT cite : HC/E/CH 841].
Conditional Relocations
Where parental agreement as regards relocation is conditional on a future event, should an existing habitual residence be lost immediately upon leaving that country?
Australia
The Full Court of the Family Court of Australia answered this question in the negative and further held that loss may not even follow from the fulfilment of the condition if the parent who aspires to relocate does not clearly commit to the relocation at that time, see:
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81, [INCADAT cite: HC/E/AU 995].
However, this ruling was overturned on appeal by the High Court of Australia, which held that an existing habitual residence would be lost if the purpose had a sufficient degree of continuity to be described as settled. There did not need to be a settled intention to take up ‘long term' residence:
L.K. v. Director-General Department of Community Services [2009] HCA 9, (2009) 253 ALR 202, [INCADAT cite: HC/E/AU 1012].